8 Wend. 620 | N.Y. Sup. Ct. | 1832
Both parties claim title under Edwards. The important questions, therefore, are 1st, whether the deed from Edwards to the lessor was sufficiently proved; and if so, 2d, whether the lessor acquired title under it as against a subsequent bona fide purchaser.
The proof was sufficient; the plaintiff shewed the absence of one witness positively, and proved his hand writing, and the hand writing of the grantor; he also proved prima facie
I do not think the plaintiff was entitled to read the deed in evidence as an ancient deed; there had been no possession under it, nor were there any circumstances shewn relating to the deed, except those concerning its execution. When the lot was fir^t occupied does not appear ; probably not till recently, as the defendant acquired his title in 1819.
It was not necessary that the deed in question should have been deposited under the statutes of 1794. The principal, if not the only object of those statutes was the detection of frauds and forgeries. 20 Johns. R. 659. 6 Cowen, 146. 1 Wendell, 489. Edwards, the grantee from the surveyor-general, was not the soldier who merited the lot, nor the grantee of the sol
I agree with the defendant’s counsel, that if the deed from Edwards to the lessor was void, the defendant shewed a good title under the judgment; for Edwards having title from the surveyor-general, that title must remain in him until it is legally divested, and if it were in him when the judgment was docketed it passed to the defendant; and even if the title had passed from him in a manner" conclusive against him as in favor of his grantee, as by an unrecorded deed, where the statutes require a record to conclude subsequent incumbrancers or bona fide purchasers, still if such record be necessary as against such purchasers and incumbrancers, an unrecorded deed is unavailing against them; so in this case, had it been necessary by statute, in 1793, that every deed should be recorded to give it efficacy against subsequent bona fide purchasers or incumbrancers, then, under the circumstances of this case, there would have existed an interest in Edwards, upon which Burr’s judgment would have been a lien; and though our statute does not save the rights of judgment creditors, and the judgment alone is unavailing as an incumbrance against an unre
In this case, however, I place the plaintiff’s right to recover